The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
Plaintiff brings this cause of action against the Defendant for employment discrimination pursuant to the New York State Human Rights Law, Executive Law §§ 290 et seq. Defendant removed the action to federal court. Plaintiff now moves to remand and Defendant moves for summary judgment.
Plaintiff was employed by Defendant as a Senior Customer Engineer ("SCE"). (Def.'s 3(g) Statement P 1; Pl.'s Dep. at 54.) On January 1, 1992, Defendant implemented a Drug and Alcohol Abuse Policy ("Drug Policy") to maintain a program for an environment free from the influence of illegal drugs, controlled substances and alcohol abuse. (Def.'s 3(g) Statement PP 2-3; MacFarlane Aff. Attachment B.) The Drug Policy applied to all applicants for employment, current employees, and employees of contractors and subcontractors, and copies of the Drug Policy were given to all such individuals. (Def.'s 3(g) Statement PP 4-5.) Plaintiff read the Drug Policy and understood it. (Def.'s 3(g) Statement P 6; Pl.'s Dep. at 12-13.) The Drug Policy provided that all employees were subject to unannounced preventive testing by an independent contractor, ASB Meditest ("ASB"), and that any employee with a positive drug test result was subject to immediate suspension leading to termination. (Def.'s 3(g) Statement PP 7-8, 11.)
In May 1994, twenty-six of the Defendant's employees in the United States were randomly selected for unannounced preventive drug screening.
(Def.'s 3(g) Statement P 20.) Plaintiff was one of the employees randomly selected. (Def.'s 3(g) Statement P 26.) Twenty-two of the employees selected were Caucasian, one was African-American, one was Hispanic and two were Asian. (Def.'s 3(g) Statement P 27.) Plaintiff was given a drug screening packet and directed to be tested at the ASB center; once there he completed the necessary paperwork and provided ASB personnel with his specimen.
(Def.'s 3(g) Statement PP 29-33; Pl.'s Dep. at 9-20.) The first test was positive for marijuana. (Def.'s 3(g) Statement P 37; MacFarlane Aff. Attachment F.) The second test confirmed the first one. (Def.'s 3(g) Statement PP 38-39; MacFarlane Aff. Attachment F.) As a result, Plaintiff's manager informed him he was suspended and subsequently Plaintiff was terminated on May 23, 1994. (Def.'s 3(g) Statement PP 41-42.)
Plaintiff failed to respond to the Defendant's 3(g) Statement. Local Rule 3(g) states, "the papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." The Court's individual Rules also set forth detailed instructions for 3(g) Statements and Plaintiff was specifically directed to the Rules in a letter from Chambers dated January 10, 1996. Plaintiff has failed to comply with these rules. Therefore, pursuant to Local Rule 3(g) all Defendant's material facts not in dispute are deemed admitted.
This Court has had a rather involved history with these parties, not reflected by the 1995 filing date of the present federal action.
Plaintiff first filed its Complaint in the Supreme Court for the County of New York on August 1, 1994. In that Complaint Plaintiff alleged state causes of action as well as an action pursuant to 42 U.S.C. § 1981. Defendant timely
filed a notice of removal, based on federal question jurisdiction, and the action was assigned to this Court. No. 94 Civ. 6498 (DAB). On September 13, 1994, Plaintiff filed an Amended Complaint, no longer claiming relief pursuant to 42 U.S.C. § 1981. On October 5, 1994, Defendant filed an Amended Notice of Removal, based on diversity jurisdiction, and served an Amended Answer. Plaintiff took no action regarding these notices of removal. On February 3, 1995, the Court met with the parties and issued a Scheduling Order. The parties proceeded in discovery and on August 24, 1995, a motion to remand was filed. On September 6, 1995, the Court endorsed a stipulation between the parties, which was agreed to by telephone conference with Chambers and subsequently put into writing. The Stipulation stated that Plaintiff was not proceeding against the Defendant pursuant to 42 U.S.C. § 1981 or any other federal claim, and that his damages would not exceed $ 50,000.00.
The case was then remanded to state court.
On November 3, 1995, after Defendant believed Plaintiff did not agree to limit his damages to $ 50,000.00, it filed a third Notice of Removal. Before the Court can rule on the Defendant's Motion for Summary Judgment, Defendant must show that the Court has subject matter jurisdiction over the Complaint. The Court will turn its attention first to the Removal Notice and subject matter jurisdiction.
1. Notice of Removal; timeliness
Plaintiff argues that the Defendant's Removal Notice was untimely filed because it was filed more than one year after the filing of the Complaint, and hence barred by 28 U.S.C. § 1446(b), which states "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action." Plaintiff argues that the third notice of removal filed in November of 1995, occurred more than one year after the commencement of this action in August 1994.
On its face Plaintiff argument is correct, however, the facts presented here are unusual. The Court finds the statute was meant to apply to those litigants, who for the first time, file a notice of removal after one year. Here, Defendant filed three notices of removal. Only upon agreement, that the damages would not exceed the jurisdictional amount, did the Defendant agree to remand. Hence, it would be unfair to penalize the Defendant, who timely filed three removal notices
by denying its statutory right to removal based on untimeliness. Defendant would never had to file its third notice, outside the one-year scope of 28 U.S.C. § 1446, had it not been for the Plaintiff's tactics.
The Court finds the Defendant's notice of removal was timely filed.
2. Subject Matter Jurisdiction
However, although the Court finds that the removal notice was timely filed, the Defendant still has the burden of showing the grounds upon which removal is based and which confer subject matter jurisdiction. Defendant alleges that this Court has jurisdiction based on diversity.
Plaintiff is a citizen of New York. Defendant is incorporated in Delaware and maintains its principal place of business in Texas. Diversity of citizenship clearly exists, however, the issue in this case is whether the jurisdictional amount of $ 50,000.00 is met.
The party seeking to assert federal jurisdiction has the burden of proving that diversity exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 183, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); United Food & Commercial Workers Union, Local 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994); Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir. 1994); Chappelle v. Beacon Communications Corp., 863 F. Supp. 179, 181 (S.D.N.Y. 1994); Mopaz Diamonds, Inc. v. Institute of London Underwriters, 822 F. Supp. 1053, 1055 (S.D.N.Y. 1993). Removal statutes are to be "strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert. denied, 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988)), cert. denied, 498 U.S. 1085 (1991); Irving Trust Co. v. Century Export & Import, S.A., 464 F. Supp. 1232, 1236 (S.D.N.Y. 1979); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the (removal) statute has defined.").
The Supreme Court set the standard used to review the complaint to determine whether subject matter jurisdiction exists:
The rule governing dismissal for want of jurisdiction is that . . . the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really less than the jurisdictional amount to justify dismissal. Saint Paul Mercury Indem. Co. v. Red Cab. Co., 303 U.S. 283, 288-89, 82 L. Ed. 845, 58 S. Ct. 586 (1938).
See A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir. 1991); Williams v. NYS Livery Serv., Inc., 1995 U.S. Dist. LEXIS 11773, No. 95 Civ. 0401, 1995 WL 491485, at *2 (S.D.N.Y. Aug. 17, 1995); Pirenne Python Schifferli Peter & Associates v. Wyndham Partners, L.P., 1995 U.S. Dist. LEXIS 5835, No. 92 Civ. 9252, 1995 WL 261512, at *1 (S.D.N.Y. May 3, 1995). Hence, the Court must find with a legal certainty
that the claim is less than the jurisdictional amount. See, e.g., Deutsch v. Hewes St. Realty Corp., 359 F.2d 96, 98 (2d Cir. 1966). A defendant must show a "reasonable probability" that the claim is for more than the jurisdictional amount. Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994); Foschi v. United States Swimming, Inc., 916 F. Supp. 232, 241 (E.D.N.Y. 1996).
The amount in controversy should be determined from the face of the complaint unless the defendant can show that the amount was determined in bad faith. Saint Paul, 303 U.S. at 292; Pirenne, 1995 U.S. Dist. LEXIS 5835, 1995 WL 261512, at *1 (quoting Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 6 L. Ed. 2d 890, 81 S. Ct. 1570 (1961)). However, if the complaint does not allege an amount of recovery then the Court is to look to the removal notice. If the removal notice
fails to allege facts sufficient to establish the jurisdictional amount then the court may find that it lacks jurisdiction. Lupo, 28 F.3d at 273-74; Pirenne, 1995 U.S. Dist. LEXIS 5835, 1995 WL 261512, at *1. Furthermore, the amount will be determined at the time of removal. Rosenberg v. GWV Travel, Inc., 480 F. Supp. 95, 96 (S.D.N.Y. 1979).
Determining the value of the Complaint can be extremely difficult because the Court must decide what rights are involved and from whose viewpoint
they should be measured. Furthermore, when the Complaint is silent as to a monetary value this only serves to increase the difficulty of valuation. The following standards are used to assist the Court in this evaluation.
In actions seeking declaratory judgment it is well established that the value of the judgment is measured by the value of the object of the litigation. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 347, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); Law Audit Servs., Inc. v. Studebaker Tech., Inc., 1996 U.S. Dist. LEXIS 3621, No. 96 Civ. 0926, 1996 WL 137492, at *3 (S.D.N.Y. Mar. 27, 1996). This doctrine applies to other types of equally intangible items. Punitive damages can be included in the jurisdictional amount, if they are legally recoverable. A.F.A. Tours, 937 F.2d at 87; Rosenberg, 480 F. Supp. at 97. Finally, fees are not added to the amount. Givens v. W.T. Grant Co., 457 F.2d 612, on remand on other grounds, 472 F.2d 1039 (2d Cir. 1972).
Here, Plaintiff in his Amended Complaint requests no monetary value. However, the Amended Complaint does request that the Court:
A. Declare that he has suffered discrimination at the hands of defendant and enjoin defendant from continuing its discrimination against plaintiff;
C. Order that plaintiff be awarded the back pay he would have earned had defendant not discriminated against him;
D. Order that plaintiff be awarded compensatory damages for pain, suffering and emotional distress, and punitive damages;
E. Award plaintiff the costs and disbursements of this action, including a reasonable attorney's fees.
First, there are two items the Court cannot consider. Part E cannot be included in the jurisdictional amount. Part D with regard to punitive damages is not included because punitive damages are not recoverable under the NYS Human Rts. Law, Exec. Law § 296. Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 499, 591 N.Y.S.2d 978, 981-82, 606 N.E.2d 1369 (N.Y. 1992).
Next, the Court must determine the date from which it will measure the damages. The Court will measure the damages at the time of the third Notice of Removal, which is the Notice at issue here. Plaintiff was terminated on May 23, 1994. The Notice of Removal was filed on November 3, 1995. Plaintiff received $ 29,600 a year as salary. (Pl.'s Dep. at 54.) Hence, as of November 3, 1995, Plaintiff's back pay amounted to approximately $ 46,168.00. A jury who believed Plaintiff could also award him thousands of dollars in compensatory damages. In addition, if Plaintiff were reinstated, that would be worth the amount of years he would work at the Defendant, also resulting in thousands of dollars. Furthermore, the worth of ceasing discrimination or compensating for discrimination, a usually humiliating experience, can also result in thousands of dollars. Finally, Plaintiff's recent requests to settle for more than $ 50,000, an indication of what he believes his claim is worth, all lead the Court to find that Defendant advanced a reasonable probability that the claim is over $ 50,000 and the Court concludes that it cannot dismiss the case from federal court as it cannot determine with a legal certainty that the claim is for less than $ 50,000.
B. Motion for Summary Judgment
The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). "The plain language of Rule 56(c) mandates the entry of summary judgment, . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).
3. New York Human Rights Law
The New York Human Rights Law is comparable to Title VII. Perry v. Manocherian, 675 F. Supp. 1417 (S.D.N.Y. 1987); Bradley v. AMTRAK, 797 F. Supp. 286, 291 n.6 (S.D.N.Y. 1992) (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992); Gibson v. American Broadcasting Cos., Inc., 892 F.2d 1128 (2d Cir. 1989)). The elements of employment discrimination are similar to those under Title VII and courts have relied on Title VII case law and applied it to cases arising under the NYS Human Rights Law. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 479, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); State Office of Mental Health v. State Div. of Human Rights, 210 A.D.2d 686, 619 N.Y.S.2d 874, 876 (N.Y. App. Div. 3d Dep't 1994); Pace College v. Commission on Human Rts., 38 N.Y.2d 28, 377 N.Y.S.2d 471, 339 N.E.2d 880 (N.Y. 1975).
In order to prevail in an employment discrimination action "a plaintiff must first prove by a preponderance of the evidence a prima facie case of discrimination. If he is successful, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)); Mental Health, 619 N.Y.S.2d at 876. If the defendant succeeds in establishing such a reason, the plaintiff, who retains the ultimate burden of persuasion, must have "an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. ...